Dr. Ramakant Singh v. Union of India

1. The petitioner is aggrieved by the order passed by the Central Administrative Tribunal (hereinafter referred to for short as „the Tribunal‟) dated 05.09.2014 as also the order dated 24.04.2015 passed in Review Application. The OA as also the Review Application filed by the petitioner stand dismissed.

2. The pleadings in this matter are complete. With the consent of the parties, the writ petition is set down for final hearing and disposal.

3. Necessary facts which are required to be noticed for disposal of this petition, as stated in the petition, are as under. 2016:DHC:5734-DB

4. The petitioner was initially appointed to the post of Project Officer in the Civil Aviation Department on 17.01.1993. He was promoted to the post of Senior Scientific Officer, known as Assistant Director (AE) on 17.03.2003. Petitioner was again promoted to the post of Deputy Director on ad hoc basis by an order dated 14.09.2010. The Recruitment Rules, known as Civil Aviation Department Class-I and Class-II post Recruitment Rules, 1969, were notified on 16.06.1969. As per the Recruitment Rules, Senior Scientific Officers were eligible to be considered for the post of Deputy Director(R&D) on completion of requisite number of years service as a Senior Scientific Officer. There was no other essential qualification prescribed for promotion. By a Notification dated 10.08.1992, the Recruitment Rules for the post of Deputy Director (R&D) were amended. On 17.03.2008, the petitioner was promoted to the post of Assistant Director on regular basis. As per the Recruitment Rules, the petitioner became eligible to be considered for promotion to the post of Deputy Director(AE) on 17.03.2008. The petitioner claims that he had fulfilled all the educational qualifications, experience and technical qualifications in the year 2008 itself. The petitioner was also the senior-most person to be considered for promotion to the post of Deputy Director(AE).

5. The grievance of the petitioner is that the respondents had not conducted any DPC for the promotion to the post of Deputy Director since 2008. In view thereof, the petitioner has been deprived of promotion on regular basis and also the delay in conducting the DPC would affect his being considered for the next promotion. The respondents, in the meanwhile, decided to fill up 07 posts of Deputy Director through direct recruitment through UPSC for which an advertisement was published in the Employment News for the week 28.08.2010 - 03.09.2010 and during this period 07 posts have been filled up. It is also the case of the petitioner that in the year 2008, the petitioner became eligible for promotion and being the senior-most eligible person he would have been considered for promotion but the DPC was not conducted for any justifiable reason. The petitioner claims to have made a number of representations, including a representation dated 27.07.2012 to the respondents for considering him for promotion to the post of Deputy Director(AE), but no reply was received till the filing of the OA. By an order dated 23.08.2012, the respondents considered the representation of the petitioner. The petitioner was informed that a proposal for holding a DPC for regular promotion against the vacancy for the year 2009-1010 was referred to the Ministry of Civil Aviation for consideration and the same had been referred to UPSC with the approval of the competent authority. This is according to the communication dated 30.11.2010. On 20.12.2013, the UPSC recommended the petitioner for promotion against the vacancy of 2009-2010 and also observed that the petitioner became eligible on 17.03.2008. However, the petitioner instead of being promoted w.e.f. 01.01.2009, was promoted by an order dated 20.12.2013 from the date of assumption of charge. This action of the respondents is claimed to be illegal, arbitrary and liable to be quashed. The OA filed by the petitioner has been dismissed which has led to the filing of the present writ petition.

6. Mr. Saini, learned counsel for the petitioner submits that the promotion to the post of Deputy Director (AE) was delayed by the respondents from the year 2009 when the actual vacancy arose till 2013. He submits that on account of this delay, the petitioner is not entitled to be considered for the next promotion to the post of Director on the ground that he has not completed three years of regular service as Deputy Director. Mr. Saini submits that the petitioner is the senior-most officer as per the seniority list dated 01.07.2014 at

┌────────────────────────────────────────────────────────────────────────────────────┐
│       serial numbers 2 to 5 stand promoted vide order dated 24.09.2015.            │
│       Counsel contends that in case the petitioner is given notional promotion     │
│       since the year 2009, as recommended by the UPSC, neither the seniority       │
│       list will be affected, neither there would be any financial implication on   │
│       the Department arises nor it is being claimed and, to the contrary, the      │
│       effect would be that the petitioner would become eligible only to be         │
│       considered for promotion to the post of Director against the vacancy         │
│       which has arisen in the year 2015. Counsel also contends that in case        │
│       notional promotion is granted to the petitioner, it would save him from      │
│       the humiliation being suffered by him as persons junior to him have          │
│       already been promoted.                                                       │
└────────────────────────────────────────────────────────────────────────────────────┘

3.[1] The DPCs should be convened at regular annual intervals to draw panels which could be utilized on making promotions against the vacancies occurring during the course of a year. For this purpose it is essential for the concerned Appointing Authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, Integrity Certificates, Seniority List, etc., for placing before the DPC. DPCs could be convened every year if necessary on a fixed date, e.g., Ist April or May. The Ministries/Departments should lay down a time schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that Recruitment Rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the Recruitment Rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. Since amendments to Recruitment Rules normally have only prospective application, the existing vacancies should be filled as per the Recruitment Rules in force. [Very often, action for holding DPC meeting is initiated after a vacancy has arisen. This results in undue delay in the filling up of the vacancy causing dissatisfaction among those who are eligible for promotion. It may be ensured that regular meetings of DPC are held every year for each category of posts so that an approved select panel is available in advance for making promotions against vacancies arising over a year.]”

13. In the case of Union of India & Ors. v. N.R. Banerjee & Ors., reported at 1997 (9) SCC 287, in para 6, it was held as under:

14. Delay in holding DPCs has been a subject matter of various decisions of the Supreme Court of India. In fact, the Office Memorandum dated 08.09.1998 which has been extracted in para 12 aforegoing, it has been highlighted that DPC should be convened at regular annual intervals to draw panels which could be considered for making promotions against vacancies which occur during the course of a particular year. The OM has also highlighted that the concerned appointing authorities must initiate action in advance to fill up anticipated vacancies. Another relevant fact which has been highlighted is that DPCs need not be delayed or postponed on the ground that the Recruitment Rules for a particular post are being reviewed/amended. The Supreme Court in the case of Union of India & Ors.(supra) not only laid stress that DPC should be convened every year, even suggested that dates should be fixed, i.e., 1st April or 1st May each year.

15. For the reasons aforegoing, we are unable to convince ourselves that the delay in holding the DPC was for any justifiable reasons. Taking into considerations the submissions made and for the reasons stated herein, the writ petition is allowed. The petitioner will be granted notional promotion from the date when the vacancy arose, i.e., in the year 2009-

2010.

16. We are informed that during the pendency of this writ petition, a DPC was held in 2015. This Court while issuing notice in the matter, in CM.APPL 13301/2015 directed that any appointment made shall be subject to the outcome in this writ petition. Accordingly, the review DPC will be held within a period of three weeks from today and the petitioner will be considered for promotion in accordance with law and the rules.

17. The writ petition stands disposed of. G.S.SISTANI, J I.S. MEHTA, J AUGUST 11, 2016 pst